Nestor Loera Arellano v. William Barr ( 2019 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 19-1574
NESTOR VICENTE LOERA ARELLANO,
Plaintiff - Appellant,
v.
WILLIAM P. BARR, Attorney General; KEVIN MCALEENAN, Secretary of the
Department of Homeland Security; THOMAS D. HOMAN, Acting Director of
United States Immigration and Customs Enforcement; SEAN W. GALLAGHER,
Atlanta Field Office Director for the United States Immigration and Customs
Enforcement; JD THORPE, Atlanta Field Office Director for the United States
Immigration and Customs Enforcement; SDDO VERONDA, ATD Supervisor
United States Immigration and Customs Enforcement; DO GOULD, NDU Unit
Officer United States Immigration and Customs Enforcement; DO BISHOP, NDU
Unit Officer United States Immigration and Customs Enforcement,
Defendants - Appellees.
Appeal from the United States District Court for the District of South Carolina, at
Charleston. Richard Mark Gergel, District Judge. (2:19-cv-01233-RMG)
Submitted: November 19, 2019 Decided: November 26, 2019
Before WILKINSON and QUATTLEBAUM, Circuit Judges, and TRAXLER, Senior
Circuit Judge.
Affirmed by unpublished per curiam opinion.
Mark J. Devine, LAW OFFICE OF MARK J. DEVINE, Charleston, South Carolina, for
Appellant. Joseph H. Hunt, Assistant Attorney General, William C. Peachey, Director,
Jeffrey S. Robins, Deputy Director, T. Benton York, Office of Immigration Litigation,
Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for
Appellees.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Nestor Vicente Loera Arellano, a native and citizen of Mexico, appeals the district
court’s order denying his motions for a temporary restraining order, a stay of removal, and
to compel the agency to stay his removal, and dismissing his habeas petition for lack of
jurisdiction. We affirm.
“The district court’s assertion of jurisdiction is a legal determination that this Court
reviews de novo.” Mapoy v. Carroll, 185 F.3d 224, 227 (4th Cir. 1999). “Notwithstanding
any other provision of law . . . , including section 2241 of Title 28, . . . a petition for review
filed with an appropriate court of appeals . . . shall be the sole and exclusive means for
judicial review of an order of removal entered or issued under any provision” of the
Immigration and Nationality Act. 8 U.S.C. § 1252(a)(5) (2018). This provision “expressly
eliminate[s] district courts’ habeas jurisdiction over removal orders.” Fernandez v.
Keisler, 502 F.3d 337, 346 (4th Cir. 2007).
Additionally, 8 U.S.C. § 1252(g) (2018) states that:
Except as provided in this section and notwithstanding any other provision
of law (statutory or nonstatutory), including section 2241 of Title 28, or any
other habeas corpus provision, and sections 1361 and 1651 of such title, no
court shall have jurisdiction to hear any cause or claim by or on behalf of any
alien arising from the decision or action by the Attorney General to
commence proceedings, adjudicate cases, or execute removal orders against
any alien under this chapter.
The district court correctly found that it was without authority to rule on Arellano’s motions
or adjudicate the habeas petition.
Accordingly, we affirm for the reasons cited by the district court. Loera Arellano v.
Barr, No. 2:19-cv-01233-RMG (D.S.C. May 13, 2019). We lack authority to grant
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Arellano’s request to extend the 30-day period to file a petition for review from the Board
of Immigration Appeals’ final order. 8 U.S.C. § 1252(b)(1) (2012) (stating that petition
for review must be filed within 30 days of the order of removal); Fed. R. App. P. 26(b)(2)
(court may not extend time period for filing a petition for review). We dispense with oral
argument because the facts and legal contentions are adequately presented in the materials
before this court and argument would not aid the decisional process.
AFFIRMED
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